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United States v. Howard

United States District Court, Second Circuit

June 7, 2013



RICHARD J. ARCARA, District Judge.

The defendant, Harold Howard, has moved pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial after a jury convicted him of narcotics-trafficking and firearms offenses. Defendant Howard contends that a co-conspirator's hearsay statements were improperly admitted into evidence during the trial and that his counsel's efforts to impeach the co-conspirator's testimony were improperly restricted by the Court. The defendant also contends two witnesses committed perjury. The United States disputes the claims of error and allegations of perjury.

The Court heard oral argument on April 22, 2013. For the reasons stated below, the Court finds no miscarriage of justice. Defendant Howard's motion for a new trial under Fed. R. Crim. P. 33 is therefore denied.


Defendant Howard was charged in a five-Count Indictment returned on March 6, 2012 with narcotics-trafficking and firearms offenses. Count 1 charged the defendant with conspiracy, from approximately November, 2008, through about November 16, 2011, to possess with intent to distribute and to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846. Count 2 charged the substantive offense of possession with intent to distribute 500 grams or more of cocaine on November 16, 2011 in violation of 21 U.S.C. § 841(b)(1)(B). Count 3 charged possession of a firearm in furtherance of the narcotics-trafficking crimes in Counts 1 and 2 of the Indictment in violation of 18 U.S.C. § 924(c)(1). Count 4 charged the defendant with being a previously convicted felon who possessed a firearm and ammunition on November 16, 2011 in violation of 18 U.S.C. § 922(g)(1). Count 5 charged the defendant with possession of an unregistered fully-automatic machine gun on November 16, 2011 in violation of 26 U.S.C. §§ 5845(a)(6) and 5861(d).

The Court presided over defendant Howard's seven-day trial in February, 2013. On February 14, 2013, the jury returned verdicts convicting defendant on all five counts in the Indictment. On March 5, 2013, defendant timely filed a motion for a new trial under Fed. R. Crim. P. 33.

Defendant Howard argues a new trial is necessary because a critical witness against him, an alleged co-conspirator named Myron Johnson, testified as to hearsay that was not properly found to be within any exception to the hearsay rules. The defendant argues the totality of the evidence against him was legally insufficient to support his convictions without inadmissible hearsay testimony of Myron Johnson.

Defendant Howard also argues the Court erred when it did not allow defendant's counsel to play for the jury during cross examination of Myron Johnson a recording of Johnson speaking to a friend of defendant Howard's during a telephone call from a jail where Johnson was in pretrial detention. The defendant argues the Court further erred when it did not order Myron Johnson to identify other co-conspirators during cross-examination when Johnson refused to identify anyone and eventually purported to assert a Fifth Amendment privilege against doing so.

Finally, defendant Howard argues that Myron Johnson committed perjury during the trial when he testified that utility service had not been turned on at 93 Elmer Street, Buffalo, New York, and that Erie County Sheriff Deputy Timothy Carney also committed perjury when Deputy Carney testified that he found a rental car agreement for a Kia Sportage in a Hummer truck registered to the defendant. The United States disputes all the claimed errors and allegations of perjury.


The standard for granting a new trial under Rule 33 of the Federal Rules of Criminal Procedure is a general one: "Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Id. It is well settled that "Rule 33 confers broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992).

Defendant Howard's primary argument in support of a new trial is that insufficient evidence linked the defendant to the narcotics-trafficking conspiracy charged in Count 1 of the Indictment because incriminating testimony of alleged co-conspirator Myron Johnson was not properly admitted into evidence. The argument is without merit.

During the trial, the Court admitted into evidence substantial evidence of seizures of cocaine, narcotics-trafficking paraphernalia, and firearms in circumstances linking defendant Howard to the charged conspiracy and strongly corroborating the testimony of Myron Johnson about Johnson's and the defendant's participation in the cocaine-trafficking conspiracy. For example, evidence showed that, on November 16, 2011, the defendant arrived at 43 Ruspin Street in Buffalo while a search warrant was being executed. The vehicle the defendant was driving contained a quantity of cocaine packaged for sale. A search warrant was obtained for a Hummer truck identified as defendant's in a garage at 93 Elmer Street in Buffalo later on November 16, 2009, and approximately three kilograms of cocaine, three loaded firearms, including a fullyautomatic machine gun, were seized from the truck. There was more that adequate evidence, including evidence proffered in the United States' pretrial memorandum and eventually introduced at trial, to support the Court's preliminary findings during the trial by the applicable standard of proof that Myron Johnson's testimony recounting out-of-court statements during and in furtherance of the alleged cocaine-trafficking conspiracy alleged in Count 1 of the Indictment was admissible testimony under Federal Rule of Evidence 801(d)(2)(e).

For reasons also adequately stated during the trial, the Court finds that it properly excluded from evidence a recording of a cryptically-worded telephone call between Myron Johnson and a friend of defendant Howard's that defendant's counsel sought to admit into evidence during the cross examination of Johnson. The defendant correctly points out that Myron Johnson was able to authenticate the voices recorded on the call. The defendant seems to contend that the call contained a more accurate portrayal of Myron Johnson's role in the conspiracy with defendant, but the call was far from clear and was potentially ...

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